The Role of Arbitration in Economic Development and the Creation of Transnational Legal Principles

Abstract

This article was not posted to SSRN when originally published. The first section of the article explores the potential of international commercial arbitration for helping to solve the "legal infrastructure" dilemma common to most developing economies: how to provide the legal institutions upon which economic development depends without the developed economy upon which effective legal institutions depend. My discussion of this "Catch 22" draws largely on a presentation I made at a 2012 "teach in" on international arbitration, organized by Professor Catherine Rogers, held in Ramallah, Palestine in conjunction with a proposed Israeli-Palestinian ICC Center for International Commercial Arbitration.

The second section of the article explores the risks to the efficacy of international commercial arbitration of the largely American proposals to improve arbitration’s "predictability of result". The concern I express is that proposals for

(i) standardized rules of procedure and evidence,

(ii) the publication of arbitral awards,

(iii) the elimination of equitable decision-making in favor of strict adherence to applicable law,

(iv) a system of arbitral "stare decisis", and

(v) other similar "control mechanisms" designed to ensure "properly legal" outcomes presuppose adherence to the Western legal tradition (and largely Anglo-American values) and threaten the desirability and utility of private commercial arbitration for the resolution of disputes involving parties from non-Western traditions.

McConnaughay, Philip, The Role of Arbitration in Economic Development and the Creation of Transnational Legal Principles (2013). Peking University Transnational Law Review, Vol. 1, Issue 1 (2013). Available at SSRN: https://ssrn.com/abstract=2717374